HOMER V. BROWN, 57 U. S. 354 (1853)

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U.S. Supreme Court

Homer v. Brown, 57 U.S. 16 How. 354 354 (1853)

Homer v. Brown

57 U.S. (16 How.) 354


In April, 1815, William Brown, of Massachusetts, made his will by which he made sundry bequests to his youngest son, Samuel. One of them was of the rent or improvement of the store and wharf privilege of the Stoddard property, during

his natural life, and the premises to descend to his heirs. After two other similar bequests, the will then gave to Samuel, absolutely, a share in certain property when turned into money.

In May, 1816, the testator made a codicil, revoking that part of the will wherein any part of the estate was devised or bequeathed to Samuel, and in lieu thereof bequeathing to him only the income, interest, or rent. At his decease, it was to go to the legal heirs.

Under the circumstances of this will and codicil, the revoking part applied only to such share of the estate as was given to Samuel, absolutely, leaving in the Stoddard property a life estate in Samuel, with a remainder to his heirs, which remainder was protected by the laws of Massachusetts until Samuel's death.

At the death of Samuel, the title to the property became vested in fee simple in the two children of Samuel.

One of these children had a right to bring a real action by a writ of right for his undivided moiety of the property.

The writ of right was abolished by Massachusetts, in 1840, but was previously adopted as a process by the acts of Congress of 1789 and 1792. Its repeal by Massachusetts did not repeal it as a process in the circuit court of the United States.

A judgment of non pros given by a state court in a case between the same parties, for the same property, was not a sufficient plea in bar to prevent a recovery under the writ of right, nor was the agreement of the plaintiff to submit his case to that

Page 57 U. S. 355

court upon a statement of facts sufficient to prevent his recovery in the circuit court.

This consequences of a nonsuit examined.

Brown, who was a citizen of Vermont, brought a writ of right to recover an undivided moiety of certain property in Boston. He was one of the two sons of Samuel Brown and the grandson of William Brown, the testator, the construction of whose will and codicil was the principal point in controversy.

As to part of the demanded premises there was a joinder of the mise. As to another part of the premises, a plea of nontenure on which issue was joined. The verdict on the joinder of the mise was for the plaintiff, the now defendant in error.

Upon the issue on the plea of nontenure, the verdict was for the tenant, now plaintiff in error.

Before pleading, the tenant submitted a motion that the writ be quashed because writs of right were by the one hundred and first chapter of the Revised statutes of Massachusetts abolished.

This motion was disallowed.

At the trial, the demandant put in evidence the will of William Brown, dated 26 April, 1815, and a codicil thereto, dated 30 May, 1816, upon which his claim of title rests.

The substance of the said will and codicil was as follows, the demandant, Brown, claiming under the devise to Samuel L. Brown, his father.

"Item: For my youngest child and son, Samuel Livermore Brown, who was born of my last wife, Elizabeth Livermore, I make the following arrangement of property in my estate for him:"

"The property of my first wife has been in some measure mingled in common stock; the property which might otherwise have descended to me by my last wife, Elizabeth, was, after her decease, conveyed by her father by deed and by a brother by will to her only surviving child, the said Samuel, which was perfectly consistent with my approbation, and the property, being in land, is sufficient for several farms, and if the said Samuel should quit seafaring pursuits, which he has selected for his employment, and turn his attention to agricultural pursuits, he will not need any addition to his acres, but it may be necessary and convenient to have some annual income to aid him in his labor; therefore I give and bequeath to my son, Samuel L. Brown, the rent or improvement of my store and

Page 57 U. S. 356

wharf privilege situate on the northerly side of the town dock in Boston, he to receive the rent annually or quarterly if the same should be leased or let during his natural life, and the premises to descend to his heirs, this being the estate I purchased of Mr. Stoddard -- reference to the records will give the bounds. Also, I do hereby direct my son William to vest one thousand dollars in bank stock or the stocks of this state or the United States, the interest of which, as it arises, to be paid by him to the said Samuel during his life and the stock to descend to the heirs of the said Samuel. This is to be advanced by the said William as some consideration for the difference in the value of the two stores."

The will then went on to create a fund which was to be divided into four equal parts, one of which was for Samuel, and then proceeded thus:

"But I do hereby direct my executor, hereafter named, to vest one-half of the said Samuel's fourth part of this property in the stock of some approved bank in Boston, or in the stocks of this state or the United States, or in real estate, the dividend or rent to [be] paid by him to the said Samuel as it may arise, and the principal or premises to descend to his heirs, and the other half of this fourth part to be paid to the said Samuel in money, when collected, to stock his farm, or for other purposes."

This will was executed on the 26th of April, 1815.

On the 30th of May, 1816, the testator added the following codicil:

"Whereas my son Samuel has sold his two farms which were left to him, one by his late grandfather Livermore, by deed, and the other by his uncle George Livermore, by will, and whereas it appears he has relinquished every intention to agricultural pursuits, and is now absent at sea, with a view to qualify himself for a seafaring life, and, under these circumstances, considering it to be more for his interest and happiness, I do hereby repeal and revoke the part of my will wherein any part of my estate, real or personal, is devised or bequeathed to my son, Samuel, therein named, and in lieu thereof do bequeath to my son, the said Samuel, only the income, interest, or rent of said real or personal estate, as the case may be, so that no more than the income, interest, or rent of any portion of my real or personal estate, and not the principal of said personal or fee of said real estate may come to the said Samuel, my son, which, at his decease, it is my will that the said real and personal estate shall then go to the legal heirs."

The demandant, George L. Brown, was at the date of his writ, a citizen of the State of Vermont, and made actual entry on the land demanded in his writ, January twenty-ninth, eighteen

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hundred and fifty-one, claiming an undivided moiety thereof in fee simple against the defendant as in no way entitled to said land.

The demandant maintained that under and by virtue of the said will and codicil of William Brown, he was entitled, at the death of his father, Samuel Livermore Brown, to one undivided moiety of the demanded premises in fee simple absolute.

The tenant produced the record of a judgment in a writ of entry, brought by the defendant in error against the plaintiff in error in the Supreme Judicial Court of Massachusetts, embracing the premises now demanded, and submitted to that court on an agreement of facts, in which suit judgment of nonsuit was directed by the court, and this agreement of facts and judgment the tenant offered in evidence as a bar or estoppel to the demandant, so far as the premises were identical with those claimed in this writ of right, and moved the court so to instruct the jury.

The tenant put in the deeds of William Brown, Zebiah C. Tilden, Sally Brown, and Samuel Livermore Brown, dated May 5, 1824, who were the only children and sole heirs at law of William Brown, the testator, and he maintained that the aforenamed grantors were enabled by virtue of the will and codicil to pass, and by these deeds did pass, all the title to the demanded premises which the testator had at the time of his death.

The counsel for the defendant then prayed the court to instruct the jury

"1st. That this action cannot be maintained, because writs of right to recover land situate in the State of Massachusetts have been abolished by its laws."

"2d. That this action is barred by the judgment of the Supreme Judicial Court of Massachusetts, which was rendered in a case between the same parties and upon the same cause of action; if that judgment be not a bar to this action, the demandant is estopped by his agreement to submit in that case from prosecuting this action."

"3d. That the demandant takes nothing under the will of William Brown, and that he has no title to the demanded premises or any part thereof."

"4th. That the rights and title of the demandant, and those under whom he claims, in and to the demanded premises, or any part thereof, have been barred by the statute of limitations of Massachusetts."

"5th. That on the pleadings and facts in this case, all of which herein before appear, the demandant cannot maintain this action."

But the Honorable Court did refuse then and there to give the said instructions to the jury, in the terms and manner in which the same were prayed, but did instruct the jury as follows:

Page 57 U. S. 358

That the demandant was entitled to a verdict for that part of the demanded premises as to which the tenants had pleaded the general issue, and that as to that part of the demanded premises to which the tenants had put in pleas of nontenure, their verdict should be for the tenants.

Whereupon the counsel for the defendant did then and there except to the aforesaid refusals and to the instructions and charge of the Honorable Court; and thereupon the jury returned a verdict for the said demandant, in words following to-wit, (finding for the demandant on the joinder of the mise and for the tenant on the plea of nontenure).

Page 57 U. S. 363

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